13 That being so, the applicant came to be sentenced in relation to the firearm offences upon the basis that there was no explanation before his Honour for the possession of the weapons. As to the receiving matters, his Honour accepted that the applicant may not have been aware that the jewellery was from the proceeds of major robberies. However, his Honour said that the applicant was fully aware that the items of jewellery had been stolen in some manner.
14 As to the subjective circumstances, his Honour accepted that there were special circumstances and thus varied the prima facie ratio between minimum and additional terms of the sentences imposed.
15 An important plank in the forceful arguments presented by Mr Byrne of senior counsel on behalf of the applicant was that all these matters to which the applicant pleaded guilty could have been dealt with summarily by reason of the relevant provisions of the Criminal Procedure Act. If the receiving matters had been dealt with summarily the maximum penalty in respect of each matter would have been one year. If the firearm offences had been dealt with summarily the maximum penalty which could have been imposed in respect of each offence was two years. His Honour specifically adverted to the fact that the firearm matters could have been dealt with summarily. However, he made no reference to the fact that the receiving matters could you have been dealt with summarily. Bearing in mind the vast experience of the sentencing judge, I would be quite unable to conclude that his Honour would not have been unaware, by reference to his knowledge of the relevant legislation and the value of the jewellery received by the applicant, that the receiving matters could have been dealt with summarily.
16 It was put to the Court by Mr Byrne SC that in effect, and I hope I am not misquoting him, it was only something of a accident that the matters came to be before the District Court in that the indictment contained a count of armed robbery which was not pursued. It is a question of discretion for the Director of Public Prosecutions whether matters such as this be proceeded with in the Local Court or the District Court, and it would only be in a rare matter, I would have thought, that this Court would be prepared to express a view as to whether it was or was not appropriate for the Director to have elected to proceed in the District Court in relation to certain matters as distinct from the Local Court. However, in view of the forceful argument that was put to this Court in this regard, I have no hesitation in expressing my view that, independently of the armed robbery count, it would have been clearly appropriate, if I may respectfully say so, for the Director to have commenced these proceedings in the District Court. It is, however, a factor as the law presently stands, for consideration in the sentencing process.
17 Senior counsel for the applicant also relied upon the fact that the applicant had not been before a court for 24 years prior to being dealt with for the subject offences and this was the first occasion upon which he had been before a court on indictment.
18 As to the firearms possession charges, he submitted that the rejection by his Honour of the applicant's explanation for the possession of the weapons did not lead to a conclusion, and was not capable in law to lead to a conclusion, that the applicant was involved in the use of weapons. The point was made that the applicant was charged with possession of the subject weapons and not with the use of the subject weapons. One must, of course, bear in mind in this context the judgment of this court in Thurgar (1990) 51 A Crim R 109, which concerned the possession of an unlicensed pistol, contrary to s 25 of the Firearms and Dangerous Weapons Act 1973, where Gleeson CJ said (at 117):
"It is not accurate to say, as was submitted on behalf of the appellant, that the learned judge was obliged to sentence the appellant on the basis that there was nothing more to the second charge than the bare fact of possession of an unlicensed pistol. There is also the circumstance that no innocent explanation for such purpose had been advanced by the appellant…"
19 That observation is often referred to and has now stood for some ten years. When dealing with the quantum of the sentence imposed in relation to the firearms matters, Mr Berman of counsel for the Crown also drew attention to the following passage in the judgment of the Gleeson CJ (at 113) where the Chief Justice said:
"Subject to an important qualification that will be mentioned below, as the learned trial judge said, the most obvious circumstance calling for the imposition of the penalty at the higher end of the range would be one relating to the purpose for which such a weapon was possessed. In particular, and again subject to the qualification to be mentioned below, the possession of such a pistol for a purpose connected with proposed criminal activities would be likely to be the kind of thing that would lead to the imposition of a penalty close to the maximum."
20 I think I am correct in saying that the relevant maximum for that offence in Thurgar was four years imprisonment. When one considers what the Chief justice said in Thurgar, the fact that these "fearsome weapons", as McGuire DCJ described them, were in a concealed position in the applicant's home, fully loaded and in serviceable condition in close proximity to a balaclava, gives a somewhat chilling aspect to the possession charges; albeit one must, as I have indicated, constantly bear in mind that the applicant was only charged with possession not use. However, that charge must be considered in the light of the gloss contained in Thurgar.
21 With regard to the receiving matters, Senior Counsel for the applicant submitted that the evidence was such that it was impossible to conclude that the applicant was a professional receiver because he had the subject jewellery in his possession for a longer period than one would reasonably expect of a professional. Senior Counsel also relied upon certain relevant statistics of the Judicial Commission. However, in this particular matter, if I may respectfully say so, one does not really get any significant assistance from those statistics, helpful as they may be in certain other cases. They certainly demonstrate, however, strange as it may be thought, that the vast majority of shortened firearm possession matters are dealt with in the Local Court. Generally stated, they indicate that the subject sentences, both in relation to the receiving matters and the possession matters, if one looks at both the Local Court and the District Court statistics, are in the higher echelon of the sentences imposed in these types of offences.
22 The applicant had before his Honour and before this Court, a strong subjective case particularly by reason of the fact that he had no prior criminal conviction for some 25 years, these were his first indictable offences and, significantly, his age and his poor medical condition. However, those matters are overtaken by the objective seriousness of both the receiving and the possession matters. This Court has said on innumerable occasions that in appropriate cases subjective circumstances must yield to the deterrent aspect.
23 His age and health does, speaking for myself, cause me concern. However, there are provisions in the Sentencing Act 1989, where the appropriate authorities may take account of a person's health as an exceptional and extenuating circumstance. I refer, of course, to s 25 A (1) of that Act.
24 Giving full weight to the arguments put on behalf of the applicant, all of which I have not dealt been specifically referred to in this judgment, and balancing the subjective and the objective circumstances, I am quite unable to conclude that the sentences imposed by his Honour were outside the sentencing discretion available to him. In the circumstances I would propose that the application for leave to appeal be granted but that the appeal be dismissed.
25 HULME J: I agree with the orders proposed and, with one reservation, with his Honour's reasons. The one reservation concerns his Honour's reference to the provision of the Sentencing Act bearing on the care of the applicant while in prison. I do not find it necessary to rely on that aspect of the matter. I would add only this: but for the applicant's age I would have regarded the sentence imposed on him, having regard particularly to the presence of two loaded shortened shotguns in the near vicinity of the balaclava when the maximum punishment prescribed for the possession of but one of those weapons for ten years, as woefully inadequate. If the community and its representatives are serious about getting rid of this sort of weapon, sentences far, far higher than disclosed in the statistics put before us should surely be imposed.
26 The order of the court is the application is dismissed.